State Of Maharashtra vs Chandraprakash Kewal Chand Jain on 18 January, 1990

Supreme Court of India
State Of Maharashtra vs Chandraprakash Kewal Chand Jain on 18 January, 1990
Equivalent citations: 1990 AIR 658, 1990 SCR (1) 115
Author: Ahmadi
Bench: Ahmadi, A.M. (J)
           PETITIONER:
STATE OF MAHARASHTRA

	Vs.

RESPONDENT:
CHANDRAPRAKASH KEWAL CHAND JAIN

DATE OF JUDGMENT18/01/1990

BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
FATHIMA BEEVI, M. (J)

CITATION:
 1990 AIR  658		  1990 SCR  (1) 115
 1990 SCC  (1) 550	  JT 1990 (1)	 61
 1990 SCALE  (1)33
 CITATOR INFO :
 R	    1992 SC2004	 (5)


ACT:
    Indian   Evidence	Act--Sections  39,  114,   118	 and
133--Victim of sex offence--Victim of crime--Court to evalu-
ate  evidence  so as to protect rights of  women  extent  of
corroboration  needed--Notion that except in rarest of	rare
cases,	the evidence of the prosecutrix cannot	be  accepted
unless corroborated in material particulars erroneous.
    Indian Penal Code--Sections 376 and 342--Crime committed
by  persons  in	 authority--Police  officer--Court  to	give
deterrent punishment.



HEADNOTE:
    The respondent, a Sub-Inspector of police, was convicted
under  section 376 of I.P.C. for having committed rape on  a
young  newly married girl of 19 or 20 years of age,  by	 the
Additional Sessions Judge, Nagpur. The respondent challenged
his  conviction in appeal to the High Court. The High  Court
set  aside the order of conviction and sentence	 imposed  by
the  trial  court and acquitted him. The State	feeling	 ag-
grieved	 came up in appeal by special leave. While  allowing
the  appeal  setting aside the order of the High  Court	 and
restoring that of the Trial Court, the Court,
    HELD:  A prosecutrix of a sex-offence cannot be  put  on
par  with  an  accomplice. She is in fact a  victim  of	 the
crime.	The  Evidence  Act nowhere says	 that  her  evidence
cannot	be  accepted unless it is corroborated	in  material
particulars.  She is undoubtedly a competent  witness  under
section 118 and her evidence must receive the same weight as
is attached to an injured in cases of physical violence. The
same degree of care and caution must attache in the  evalua-
tion of her evidence as in the case of any injured complain-
ant or witness and no more. [123B-C]
    What  is more necessary is that the Court must be  alive
to  and	 conscious of the fact that it is dealing  with	 the
evidence  of  a person who is interested in the	 outcome  of
charge levelled by her. Having regard to the increase in the
number	of sex-violation cases in the recent past,  particu-
larly cases of molestation and rape in custody, it is proper
to remove the notion, if it persists, that the testimony  of
a woman who is a
116
victim of sexual violence must ordinarily be corroborated in
material  particulars  except in the rarest of	rare  cases.
[123C-D; 124B-C]
    Ours is a conservative society where it concerns  sexual
behaviour.  Ours is not a permissive society as in  some  of
the Western and European countries. Our standard of  decency
and  morality  in public life is not the same  as  in  those
countries.  It	is, however, unfortunate  that	respect	 for
womanhood  in  our country is on the decline  and  cases  of
molestation  and rape are steadily growing. An Indian  Woman
is  now required to suffer indignities in  different  forms,
from  lewd remark to eve-teasing, from molestation to  rape.
Decency	 and  morality in public life can  be  promoted	 and
protected  only if we deal strictly with those	who  violate
the  social norms. The standard of proof to be	expected  by
the Court in such cases must take into account the tact that
such  crimes  are generally committed on the  sly  and	very
rarely	direct evidence of a person other than the  prosecu-
trix is available. [124D-F]
    Courts  must also realise that ordinarily a woman,	more
so a young girl, will not stake her reputation by leveling a
false  charge concerning her chastity. By our criminal	laws
vide  powers are conferred on police officers  investigating
cognizable  offences.  The infrastructure  of  our  criminal
'investigation	system	recognises and indeed  protects	 the
right  of a woman to decent and dignified treatment  at	 the
hands of the investigating agency. [124F-H]
    The	 purpose and setting, the person and  his  position,
the misuse or abuse of office and the despair of the  victim
which  led to her surrender are all relevant  factors  which
must  be present in the mind of the Court  while  evaluating
the conduct-evidence of the prosecutrix. A person in author-
ity,  such as a police officer carries with him the  awe  of
office	which  is bound to condition the  behaviour  of	 his
victim [125C-D]
    The Court must not be oblivious of the emotional turmoil
and  the psychological injury that a prosecutrix suffers  on
being  molested or raped. She suffers a tremendous sense  of
shame and the fear of being shunned by society and her	near
relatives  including  her husband. Instead of  treating	 her
with  compassion and understanding as one who is an  injured
victim of a crime, she is, more often than not, treated as a
sinner	and shunned. It must, therefore be realised  that  a
woman who is subjected to sex-violence would always be	slow
and  hesitant about disclosing her plight. The	Court  must,
therefore, evaluate her evidence in the above background.
117
    Bharwada  Bhognibhai  Hirjibhai  v.	 State	of  Gujarat,
[1983] 3 SCR 280--relied upon.



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 221
of 1986 etc.
From the Judgment and Order dated 28.6.1985 of the
Bombay High Court in Crl. Appeal No. 215 of 1982.
S.B. Bhasme, Mrs. H. Wahi, A.S. Bhasme and A.M. Khanwil-
kar for the Appellants.

V.D. Misra, J. Wad and Mrs. Aruna Matbur for the Re-
spondents.

The Judgment of.the Court was delivered by
AHMADI, J. This appeal by special leave is brought by
the State of Maharashtra against the judgment of acquittal
recorded by the Nagpur Bench of the High Court of Bombay
(Maharashtra) reversing the conviction of the respondent
Chandraprakash Kewalchand Jain, a Sub-Inspector of Police,
under Section 376, I.P.C. for having committed rape on
Shamimbanu, a girl aged about 19 or 20 years on 22nd August,
1981. The learned Additional Sessions Judge, Nagpur, came to
the conclusion that the prosecution had brought home the
charge under Section 376, I.P.C. and sentenced the respond-
ent to suffer rigorous imprisonment for 5 years and to pay a
fine of Rs.1,000, in default to suffer rigorous imprisonment
for 6 months. He was, however, acquitted of the charge under
Section 342, I.P.C. The respondent challenged his conviction
in appeal to the High Court. The High Court set aside the
order of conviction and sentence imposed by the trial court
and acquitted the respondent. The State feeling aggrieved
sought special leave to appeal. On the same being granted
this appeal is before us.

Briefly the facts are that the parents of Shamimbanu
were residing as tenants in a part of the building belonging
to the father of Mohmad Shafi while the remaining portion
was occupied by the owner’s family. PW 1 Mohmad Shafi aged
about 25 years fell in love with PW 2 Shamimbanu aged about
19 years. The prosecution case is that although the parents
of both knew about their love affair, for some reason or the
other, they were not married. Both of them left Nagpur and
went to Bombay where they contracted a marriage
118
through a Kazi and returned to Nagpur by train on 20th
August, 198 1. They got down at Anjani Railway Station (a
suburb of Nagpur) and went to a nearby Gurudeo Lodge and
occupied Room No. 204. That night i.e. on the night of
20th/12st August, 1981, PW 8 Police Sub Inspector Qureishi
checked the hotel and learnt that the couple was living in
the said room in the assumed names of Mohmad Shabbir and
Sultana. On being questioned PW 1 Mohmad Shafi gave out the
true facts and showed the Nikahnama. Ex. 10. On being satis-
fied about the correctness of the version, Police Sub-In-
spector qureishi got their correct names substituted in the
register of the Lodge as is evident from the entry Ex. 31,
proved by PW 5 Manohar Dhote, the Manager of the Lodge.
Police Sub-Inspector Qureishi did not deem it necessary to
take any steps against the couple.

On the next night between 21st and 22nd August, 1981 the
respondent-accused went to the hotel room No. 204 occupied
by the couple at the odd time of about 2.30 a.m. and knocked
on the door. He was accompanied by PW 7 Constable Chandrab-
han. When Mohmad Shafi opened the door the respondent ques-
tioned him on seeing Shamimbanu with him. Mohmad Shafi told
him that she was his wife and gave their correct names.
Notwithstanding their replies the respondent insisted that
they accompany him to the police station. PW 5 requested the
respondent to sign his visit book since he had inspected a
few rooms of his Lodge including Room No. 204 but the re-
spondent told him that he would do it later. So saying he
left the Lodge with the couple.

On reaching the police station the respondent separated
the couple. He took Shamimbanu to the first floor of the
police station while her husband Mohmad Shafi was taken to
another room by PW 7. Shamimbanu alleges that after she was
taken to the first floor, the respondent flirted with her,
slapped her when she refused to respond to his flirtation
and demanded that she spend the night with him. The respond-
ent also demanded that she should give her age as 15 years
so that Mohmad Shafi could be booked. On her refusing and
protesting against his behaviour he threatened her with dire
consequences.

In the other room Mohmad Shafi was subjected to beating
by PW 7. After sometime both the boy and the girl were
brought down to the main hall of the police station. By then
it was around 5.00 or 5.30 a.m. Thereafter he sent Mohmad
Shafi with a constable to fetch the girl’s father. The
girl’s parents arrived at the police station shortly. The
respondent asked the girl’s parents if they were prepared to
take
119
back the girl who claimed to have married Mohmad Shafi. The
girl’s parents showed annoyance and left the police station
refusing to take her with them. Mohmad Shafi’s parents also
adopted the same attitude.

The respondent then recorded an offence under Section
110 read with 117 of the Bombay Police Act against Mohmad
Shafi on the allegation that he was found misbehaving on a
public street uttering filthy abuses in front of Gujarat
Lodge near Gurudeo Lodge. After putting Mohmad Shaft in the
lock-up he sent the girl Shamimbanu to Anand Mahal Hotel
with PW 7. Initially PW 4, the Hotel Manager refused to give
a room to an unescorted girl but PW 7 told him that he had
brought her on the directive of the respondent. Thereupon PW
4 allotted Room No. 36 to her. He made an entry in the hotel
register to the effect ‘Shamimbanu wife of Mohmad
Shaft ….. as per instructions of Police Sub-Inspector
Shri Jain …… ‘ vide Ex. 25. Afterleaving the girl in
Room No. 36, PW 7 left the hotel. It is the prosecution case
that after the girl was allotted the room, as per the usual
practice, the hotel boy changed the bed-sheets, pillow
covers and quilt cover. The rent was charged from the girl.
Having thus separated the couple and finding the girl
thoroughly helpless, the respondent visited the girl’s room
and knocked on the door. The unsuspecting Shamimbanu opened
the door. The respondent entered the room and shut the door
behind him. Thereafter he asked the girl to undress but on
the girl refusing he forcibly removed her ‘kurta’ and threw
it away. He gagged the girl’s mouth and threatened her with
dire consequences if she did not submit. He then threw the
girl on the cot, forcibly removed her ‘salwar’ and denuded
her. He then had sexual intercourse with her, notwithstand-
ing her protestations. After satisfying his lust, the re-
spondent left threatening that he would bury both of them
alive if she complained to anyone. He told her that he would
now arrange to send back her husband.

Not fully satisfied the respondent returned to the hotel
room after about half an hour and knocked on the door.
Shamimbanu opened the door thinking that her husband had
returned. When she saw the respondent she tried to shut the
door but the respondent forced his way into the room and
shut the door from within. He once again had sexual inter-
course with her against her will. He repeated his threat
before leaving.

On the other hand Mohmad Shaft was sent to Court on his
arrest
120
under Sections 110/117 of the Bombay Police Act. He was
released on bail. He returned to the police station by about
5.00 p.m. and enquired about the whereabouts of his wife. PW
7 told him she was in Room No. 36 of Anand Mahal Hotel. He
immediately went to his wife. On seeing him she was in
tears. She narrated to him what she had gone through at the
hands of the respondent. Enraged Mohmad Shaft went back to
the police station and informed PW 14 Inspector Pathak about
the commission of assault and rape on his wife by the re-
spondent. PW 14 recorded the same in the station diary at
6.35 p.m. and informed his superiors about the same presuma-
bly because a police officer was involved. Thereupon Deputy
Commissioner of Police Parassis and Assistant Commissioner
of Police Gupta arrived at the police station. The Assistant
Commissioner of Police asked Inspector Pathak to accompany
Mohmad Shafi and fetch Shamimbanu. On their return with
Shamimbanu Mohmad Shaft was asked to give a written account
of the incident which he did. On the basis thereof an of-
fence under section 376, I.P.C. was registered and the
investigation was entrusted to Inspector Korpe of Crime
Branch.

In the course of investigation a spot panchnama of Room
No. 36 was drawn up and certain articles such as bed-sheet,
quilt cover, mattress, etc. which had semen-like stains were
attached. The hotel register containing the relevant entry
(Ex. 25) was also seized and statements of witnesses were
recorded. Both the respondent and Shamimbanu were sent for
medical examination and their blood samples were taken along
with that of Mohmad Shafi to determine their blood groups.
Similarly the garments of the respondent and Shamimbanu were
attached and sent for chemical examination along with the
articles seized from the hotel room. On the conclusion of
the investigation the respondent was charge sheeted and put
up for trial before the Additional Sessions Judge, Nagpur.
The respondent pleaded not guilty to the charge and
denied the accusation made against him. His defence was that
he arrested Mohmad Shaft on the charge under Sections
110/117, Bombay Police Act, and took him to Gurudeo Lodge
and from there he took him and Shamimbanu to the police
station. Since the parents of both the boy and the girl
disowned them he had no alternative but to place Mohmad
Shaft in the lock-up and allow Shamimbanu to leave the
police station as a free citizen since she was not accused
of any crime. It was his say that after Shamimbanu left the
police station she went to Anand Mahal Hotel and stayed in
Room No. 36 awaiting Mohmad Shafi. According to him as
Mohmad Shaft was annoyed because of his detention in the
121
lock-up, he had, with the assistance of Shamimbanu, falsely
involved him on the charge of rape.

The trial court found that the respondent had visited
Room No. 204 at an odd hour and had taken the couple to the
police station where he had misbehaved with the girl. It
also found that he had booked the boy on a false charge and
had lodged the girl in Room No. 36 after their parents
disowned them. It lastly held that the evidence of the
prosecutrix clearly established that the respondent had
raped her twice in that room. The trial court convicted the
respondent under Section 376, I.P.C.

The respondent preferred an appeal to the High Court. A
learned Single Judge of the High Court allowed the appeal
and acquitted the respondent. The High Court took the view
that the oral information Ex. 50 furnished by Mohmad Shafi
to Inspector Pathak at 6.35 p.m. constituted the First
Information Report and the subsequent written information
Ex. 7 given at 8.30 p.m., was inadmissible in evidence as
hit by Section 162 of the Code. The High Court then took the
view that except in the ‘rarest of the rare cases’ where the
testimony of the prosecutrix is found to be so trustworthy,
truthful and reliable that no corroboration is necessary,
the Court should ordinarily look for corroboration. Accord-
ing to it as Ex. 50 did not unfold two successive acts of
rape, this was not a case where it would be safe to base a
conviction on the sole testimony of the prosecutrix, more so
because both the girl and the boy had reason to entertain a
grudge against the respondent who had booked the latter.
Lastly the High Court pointed out that the version of the
prosecutrix is full of contradictions and is not corroborat-
ed by medical evidence, in that, the medical evidence re-
garding the examination of the prosecutrix is negative and
does not show marks of violence. These contradictions and
inconsistencies have been dealt with in paragraphs 24 to 31
of the judgment. The High Court also noticed certain infirm-
ities in the evidence of PW 1 Mohmad Shafi in paragraphs 32
to 34 of its judgment. The High Court, therefore, concluded
that the prosecution had miserably failed to prove the guilt
of the accused and accordingly acquitted him. It is against
this order of the High Court that the State has preferred
this appeal by special leave.

The learned counsel for the appellant-State submitted
that the entire approach of the High Court in the matter of
appreciation of evidence of the prosecution witnesses,
particularly PW 2, betrays total ignorance of the psychology
of an Indian woman belonging to the
122
traditional orthodox society. He submitted that the prosecu-
tix of this case came from an orthodox muslim family, was
semi-literate having studied upto the VII Standard and whose
parents considered it a shame to take her back to their fold
because she had eloped and married a boy of her own choice.
He submitted that the statement of law in the High Court
judgment that implicit reliance cannot be placed on a prose-
cutrix except in the rarest of rare cases runs counter to
the law laid down by this Court in Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat,
[1983] 3 SCR 280. He also
submitted that the evidence of the prosecutrix has been
rejected on unsustainable grounds which do not touch the
substratum of the prosecution case and which can be at-
tributed to nervousness and passage of time. According to
him this approach of the High Court has resulted in gross
miscarriage of justice which this Court must correct in
exercise of its jurisdiction under Article 136 of the Con-
stitution. The learned counsel for the respondent, however,
supported the High Court judgment.

It is necessary at tile outset to state what the ap-
proach of the Court should be while evaluating the prosecu-
tion evidence, particularly the evidence of the prosecutrix,
in sex-offences. Is it essential that the evidence of the
prosecutrix should be corroborated in material particulars
before the Court basis a conviction on her testimony? Does
the rule of prudence demand that in all cases save the
rarest of rare the Court should look for corroboration
before acting on the evidence of the prosecutrix? Let us see
if the Evidence Act provides the clue. Under the said stat-
ute ‘Evidence’ means and includes all statements which the
Court permits or requires to be made before it by witnesses,
in relation to the matters of fact under inquiry. Under
Section 59 all facts, except the contents of documents, may
be proved by oral evidence. Section 118 then tells us who
may give oral evidence. According to that section all per-
sons are competent to testify unless the Court considers
that they are prevented from understanding the questions put
to them, or from giving rational answers to those questions,
by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind. Even in the
case of an accomplice Section 133 provides that he shall be
a competent witness against an accused person; and a convic-
tion is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. However, illus-
tration (b) to Section. 114, which lays down a rule of
practice, says that the Court ‘may’ presume that an accom-
plice is unworthy of credit, unless he is corroborated in
material particulars. Thus under Section 133, which lays
down a rule of law, an accomplice is a competent witness and
a conviction based solely on his uncorroborated evidence
123
is not illegal although in view of Section 114, illustration

(b), courts do not as a matter of practice do so and look
for corroboration in material particulars. This is the
conjoint effect of Sections 133 and 114, illustration (b).
A prosecutrix of a sex-offence cannot be put on par with
an accomplice. She is in fact a victim of the crime. The
Evidence Act nowhere says that her evidence cannot be ac-
cepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under Section 118 and
her evidence must receive the same weight as is attached to
an injured in cases of physical violence. The same degree of
care and caution must attach in the evaluation of her evi-
dence as in the case of an injured complainant or witness
and no more. What is necessary is that the Court must be
alive to and conscious of the fact that it is dealing with
the evidence of a person who is interested in the outcome of
the charge levelled by her. If the Court keeps this in mind
and feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice incorporat-
ed in the Evidence Act similar to illustration (b) to Sec-
tion 114 which requires it to look for corroboration. If for
some reason the Court is hesitant to place implicit reliance
on the testimony of the prosecutrix it may look for evidence
which may lend assurance to her testimony short of corrobo-
ration required in the case of an accomplice. The nature of
evidence required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts and circum-
stances of each case. But if a prosecutrix is an adult and
of full understanding the Court is entitled to base a con-
viction on her evidence unless the same is shown to be
infirm and not trustworthy. If the totality of the circum-
stances appearing on the record of the case disclose that
the prosecutrix does not have a strong motive to falsely
involve the person charged, the Court should ordinarily have
no hesitation in accepting her evidence. We have, therefore,
no doubt in our minds that ordinarily the evidence of a
prosecutrix who does not lack understanding must be accept-
ed. The degree of proof required must not be higher than is
expected of an injured witness. For the above reasons we
think that exception has rightly been taken to the approach
of the High Court as is reflected in the following passage:
“It is only in the rarest of rare cases if the Court finds
that the testimony of the prosecutrix is so trustworthy,
truthful and reliable that other corroboration may not be
necessary.”

124

With respect, the law is not correctly stated. If we may say
so, it is just the reverse. Ordinarily the evidence of a
prosecutrix must carry the same weight as is attached to an
injured person who is a victim of violence, unless there are
special circumstances which call for greater caution, in
which case it would be safe to act on her testimony if there
is independent evidence lending assurance to her accusation.
We think it proper, having regard to the increase in the
number of sex-violation cases in the recent past, particu-
larly cases of molestation and rape in custody, to remove
the notion, if it persists, that the testimony of a woman
who is a victim of sexual violence must ordinarily be cor-
roborated in material particulars except in the rarest of
rare cases. To insist on corroboration except in the rarest
of rare cases is to equate a woman who is a victim of the
lust of another with an accomplice to a crime and thereby
insult womanhood. It would be adding insult to injury to
tell a woman that her story of woe will not be believed
unless it is corroborated in material particulars as in the
case of an accomplice to a crime. Ours is a conservative
society where it concerns sexual behaviour. Ours is not a
permissive society as in some of the Western and European
countries. Our standard of decency and morality in public
life is not the same as in those countries. It is, however,
unfortunate that respect for womanhood in our country is on
the decline and cases of molestation and rape are steadily
growing. An Indian woman is now required to suffer indigni-
ties in different forms, from lewd remarks to eve-teasing,
from molestation to rape. Decency and morality in public
life can be promoted and protected only if we deal strictly
with those who violate the societal norms. The standard of
proof to be expected by the Court in such cases must take
into account the fact that such crimes are generally commit-
ted on the sly and very rarely direct evidence of a person
other than the prosecutrix is available. Courts must also
realise that ordinarily a woman, more so a young girl, will
not stake her reputation by levelling a false charge con-
cerning her chastity.

But when such a crime is committed by a person in au-
thority, e.g. a police officer, should the Court’s approach
be the same as in any other case involving a private citi-
zen? By our criminal laws wide powers are conferred on
police officers investigating cognizable offences. The
infrastructure of our criminal investigation system recog-
nises and indeed protects the right of a woman to decent and
dignified treatment at the hands of the investigating agen-
cy. This is evident from the proviso to sub-section (2) of
Section 47 of the Code which obliges the police officer
desiring to effect entry to give an opportunity to the
125
woman in occupation to withdraw from the building. So also
subsection (2) of Section 53 requires that whenever a female
accused is to be medically examined such examination must be
under the supervision of a female medical practitioner. The
proviso to Section 160 stipulates that whenever the presence
of a woman is required as a witness the investigating offi-
cer will record her statement at her own residence. These
are just a few provisions which reflect the concern of the
legislature to prevent harassment and exploitation of women
and preserve their dignity. Notwithstanding this concern, if
a police officer misuses his authority and power while
dealing with a young helpless girl aged about 19 or 20
years, her conduct and behaviour must be judged in the
backdrop of the situation in which she was placed. The
purpose and setting, the person and his position, the misuse
or abuse of Office and the despair of the victim which led
to her surrender are all relevant factors which must be
present in the mind of the Court while evaluating the con-
duct-evidence of the prosecutrix. A person in authority,
such as a police officer, carries with him the awe of office
which is bound to condition the behaviour of his victim. The
Court must not be oblivious of the emotional turmoil and the
psychological injury that a prosecutrix suffers on being
molested or raped. She suffers a tremendous sense of shame
and the fear of being shunned by society and her near rela-
tives, including her husband. Instead of treating her with
compassion and understanding as one who is an injured victim
of a crime, she is, more often than not, treated as a sinner
and shunned. It must, therefore, be realised that a woman
who is subjected to sex-violence would always be slow and
hesitant about disclosing her plight. The Court must, there-
fore, evaluate her evidence in the above background.
It is time to recall the observations of this Court made
not so far back in Bharwada Bhognibhai Hirjibhai, (supra):
“In the Indian setting, refusal to act on the testimony of a
victim of sexual assaults in the absence of corroboration as
a rule, is adding insult to injury. Why should the evidence
of the girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or suspicion? To do so
is to justify the charge of male chauvinism in a male domi-
nated society. We must analyse the argument in support of
the need for corroboration and subject it to relentless and
remoreseless cross-examination. And we must do so with a
logical, and not an opinionated, eye in the light of
126
probabilities with our feet firmly planted on the soil of
India and with our eyes focussed on the Indian horizon. We
must not be swept off the feet by the approach made in the
Western World which has its own social milieu, is own social
mores, its own permissive values, and its own code of life.
Corroboration may be considered essential to establish a
sexual offence in the backdrop of the social ecology of the
Western World. It is wholly unnecessary to import the said
concept on a turn-key basis and to transplate it on the
Indian soil regardless of the altogether different atmos-
phere, attitudes, mores, responses of the Indian Society,
and its profile. The identities of the two worlds are dif-
ferent. The solution of problems cannot therefore be identi-
cal.”

Proceeding further this Court said:

“Without the fear of making too wide a statement, or of
overstating the case, it can be said that rarely will a girl
or a woman in India make false allegations of sexual
assault ………. The statement is generally true in the
context of the urban as also rural society. It is also by
and large true in the context of the sophisticated, not so
sophisticated, and unsophisticated society. Only very rarely
can one conceivably come across an exception or two and that
too possibly from amongst the urban elites. Because: (1) A
girl or a woman in the tradition bound non-permissive Socie-
ty of India would be extremely reluctant even to admit that
any incident which is likely to reflect on her chastity had
ever occurred. (2) She would be conscious of the danger of
being ostracised by the Society or being looked down by the
Society including by her own family members, relatives,
friends and neighbours. (3) She would have to brave the
whole world. (4) She would face the risk of losing the love
and respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered. (5) If
she is unmarried, she would apprehend that it would be
difficult to secure an alliance with a suitable match from a
respectable of an acceptable family. (6) It would almost
inevitably and almost invariably result in mental torture
and suffering to herself. (7) The fear of being taunted by
others will always haunt her. (8) She would feel extremely
embrassed in relating the incident to others being over
powered by a feeling of shame on account of the upbringing
127
in a tradition bound society where by and large sex is
taboo. (9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and family
honour is brought into controversy. (10) The parents of an
unmarried girl as also the husband and members of the hus-
band’s family of a married woman would also more often than
not, want to avoid publicity on account of the fear of
social stigma on the family name and family honour. (11) The
fear of the victim herself being considered to be promiscu-
ous or in some way responsible for the incident regardless
of her innocence. (12) The reluctance to face interrogation
by the investigating agency, to face the court, to face the
cross examination by Counsel for the culprit, and the risk
of being disbelieved, acts as a deterrent.”
We are in complete agreement with these observations.
We now proceed to examine if the High Court was justi-
fied in upturning the order of conviction passed by the
Trial Court. The High Court refused to confirm the convic-
tion of the respondent as it found the evidence of the
prosecutrix full of contradictions and not consistent with
medical evidence as well as the findings recorded by the
Chemical Analyst. We may first indicate the contradictions
which prompted the High Court to look for corroboration.
They are:

(i) the version that the respondent had misbehaved with
her in the police station and had molested her could not be
believed because she did not complain about the same to the
other police officers who were present in the police station
main hall on the ground floor or to her relatives who were
called to the police station;

(ii) the conduct of the respondent in calling her par-
ents and in giving them an opportunity to take her with them
does not smack of an evil mind;

(iii) the evidence of the prosecutrix that the respondent
was instrumental in lodging her in Anand Mahal Hotel room is
not supported by any evidence;

(iv) the conduct of the prosecutrix in not informing and
seeking assistance from the hotel management after the first
incident and even after the second incident of rape in the
hotel
128
room is unnatural and surprising;

(v) the find of semen-stains on the ‘salwar’ and ‘kurta’
of the prosecutrix runs counter to her evidence that on both
the occasions she was completely denuded before she was
ravished;

(vi) the absence of marks of physical violence also runs
counter to her version that when she tried to raise an alarm
she was slapped by the respondent;

(vii) the evidence of PW 3 Dr. Vijaya and the medical
report Ex. 17 do not lend corroboration to the evidence of
the prosecutrix that the respondent had sexual intercourse
with her notwithstanding the resistence offered by her;

(viii) the report of the Assistant Chemical Analyst Ex.
71 shows that neither semen nor spermatozoa were detected
from the vaginal smear and slides that were forwarded for
analysis; and

(ix) the evidence of PW 12 Dr. More and his report Ex. 41
shows that no physical injuries were found on the person of
the respondent to indicate that he had forcible sexual
intercourse shortly before his examination.
Before we proceed to deal with these discrepancies we
think it is necessary to clear the ground on the question
whether the prosecutrix had a sufficiently strong motive to
falsely involve the respondent and that too a police offi-
cer. It is possible that she may have felt annoyed at being
dragged out of the hotel room at dead of night after they
had satisfied Police Sub-Inspector Qureishi that they were
legally wedded only a few hours back. PW 1 may also have
felt offended at being wrongly hooked under Sections
110/117, Bombay Police Act. The question is whether on
account of this annoyance both PW 1 Mohmad Shaft and PW 2
Shamimbanu would be prepared to stake the reputation of the
latter? As pointed out earlier ordinarily an Indian woman
would be most reluctant to level false accusation of rape
involving her own reputation unless she has a very strong
bias or reason to do so. In the present case although the
couple had reason to be annoyed with the conduct of the
respondent, the reason was not strong enough for Mohmad
Shafi to involve his wife and soil her reputation nor for
Shamimbanu to do so. An Indian woman attaches maximum impor-

129

tance to her chastity and would not easily be a party to any
move which would jeopardise her reputation and lower her in
the esteem of others. There are, therefore, no such strong
circumstances which would make the court view her evidence
with suspicion.

The next question is whether the High Court was justi-
fied in refusing to place reliance on her evidence in view
of the discrepancies and inconsistencies indicated above. It
is not in dispute that the respondent had taken both PW 1
and PW 2 to the police station at dead of night. At the
police station both of them were separated. She was all
alone with the respondent till about 5.00 a.m. This was her
first encounter with the police. She must have been nervous
and considerably shaken. She must have felt helpless as she
was all alone. She must be terribly worried not only about
her own fate but also that of her husband. It is during the
time she was alone with the respondent that the latter is
alleged to have misbehaved with her. How could she complain
to the other police officers in the police station about the
behaviour of their colleague unless she be sure of their
response? Having seen the behaviour of one of them, how
could she place confidence in others belonging to the same
clan? She may rather prefer to ignore such behaviour than
speak of it to unknown persons. Ordinarily an Indian woman
is ashamed to speak about such violations of her person,
more so to total strangers about whose response she is not
sure. There was no point in speaking to her parents who had
disowned her. She, however, claims to have informed her
husband about the same on his return. The omission on the
part of her husband to make a mention about the same cannot
discredit her. Even if we assume that she omitted to mention
it, the said omission cannot weaken her evidence as obvious-
ly she would attach more importance to what happened there-
after in the hotel room. The respondent’s behaviour in the
police station had paled into insignificance in view of his
subsequent misdeeds. No wonder she would attach greater
importance to the subsequent events rather than dwell on
advances made earlier. We, therefore, cannot agree with the
High Court’s observation that “the prosecutrix is not only
prone to make improvements and exaggerations, but is also a
liar disclosing a new story altogether to serve her inter-
est”. This is a harsh comment which, we think, is totally
unwarranted.

The High Court has argued that the conduct of the
respondent in sending for her parents and in permitting her
to go with them shows that the respondent’s intentions were
not evil. In the first place it must be mentioned that the
suggestion to call the parents came from PW 1.

130

Secondly the evil thought may have taken concrete shape
after the parents refused to take her with them. It was then
that the respondents realised the helplessness of the girl
and chalked out a plan to satisfy his lust. As a part of
that design he falsely booked Mohmad Shaft and made arrange-
ments to lodge the girl in a hotel of his choice. The evi-
dence of PW 4 Suresh Trivedi read with the entry in the
hotel register and the contradiction brought on record from
his police statement leave no room for doubt that the girl
was lodged in his hotel at the instance of the respondent.
PW 6 and PW 7 have also resiled from their earlier versions
to help the respondent. But notwithstanding their denial we
see no reason to disbelieve Shamimbanu on the point of PW 7
having lodged her in Room No. 36 of Anand Mahal Hotel as the
same is corroborated not only by the remark in the entry
Exh. 25 of the hotel register but also by the fact that it
was PW 7 who informed Mohmad Shaft that she was in Room No.

36. We are, therefore, of the view that her evidence in this
behalf is supported by not only oral but also documentary
evidence. How then could she seek help or assistance from
the hotel staff which was under the thumb of the respondent?
The hotel was situate within the jurisdiction of the re-
spondent’s police station. It was at the behest of the
respondent that she was kept in that room. She must have
realised the futility of complaining to them. Failure to
complain to the hotel staff in the above circumstances
cannot be described as unnatural conduct.

It is true that the prosecutrix had deposed that on both
the occasions she was completely denuded before the respond-
ent raped her. On the first occasion he had removed her
‘kurta’ before she was laid on the cot. Her ‘salwar’ was
removed while she was lying on the cot. Therefore, the
‘salwar’ may be lying on the cot itself when the act was
committed. It is, therefore, not at all surprising to find
semen stains on the ‘salwar’. She was wearing the same
clothes when she was ravished the second time. On the second
occasion he first threw her on the cot and then undressed
her. Therefore, both the ‘kurta’ and the ‘salwar’ may be
lying on the cot at the time of sexual intercourse. Besides
she had worn the same clothes without washing herself imme-
diately after the act on each occasion. It is, therefore,
quite possible that her clothes were stained with semen. It
must also be remembered that this is not a case where the
prosecuting agency can be charged of having concocted evi-
dence since the respondent is a member of their own force.
If at all the investigating agency would try to help the
respondent. There is, therefore, nothing surprising that
both these garments bore semen stains. Besides, there was no
time or occasion to manipulate semen stains on her clothes
and that too of the respondent’s
131
group. Her clothes were sent along with the other articles
attached from Room No. 36 for chemical analysis under the
requisition Ex. 67. The report of the Assistant Chemical
Analyser, Ex. 69 shows that her clothes were stained with
human blood and semen. The semen found on one of her gar-
ments and on the bed sheet attached from the room was of
group A which is the group of the respondent, vide Ex. 70.
Of course the other articles, viz., the mattress and the
underwear of the respondent bore no stains. On the contrary
the find of semen tends corroboration, if corroboration is
at all needed to the version of the prosecutrix. The possi-
bility of the semen stains being of Mohmad Shaft is ruled
out as his group was found to be ‘B’ and not ‘A’. In the
circumstances the absence of semen or spermatozoa in the
vaginal smear and slides, vide report Ex. 71, cannot cast
doubts on the creditworthiness of the prosecutrix. The
evidence of PW 3 Dr. Vijaya Lele shows that she had taken
the vaginal smear and the slides on 23rd August, 1981 at
about 1.30 p.m. i.e., almost after 24 hours. The witness
says that spermatozoa can be found if the woman is examined
within 12 hours after intercourse, thereafter they may be
found between 48 and 72 hours but in dead form. Shamimbanu
may have washed herself by then. Therefore absence of sper-
matozoa cannot discredit her evidence.

The absence of marks of physical violence on the prose-
cutrix is not surprising. According to her the respondent
had slapped her and threatened her with dire consequences
when she tried to resist him on both occasions. Since she
was examined almost 24 hours after the event it would be too
much to expect slap marks on her person. It is, however,
true that according to PW 12 Dr. More there were no marks of
injury on the body of the respondent when he was examined on
the 22nd itself at about 8.45 p.m. While it is true that the
version of the prosecutrix is that she had tried to resist
him, it must be realised that the respondent being a strong
man was able to overpower her and take her by force. Be-
sides, he was a man in authority in police uniform. The
prosecutrix was alone and helpless. In the circumstances as
pointed out earlier the resistance would be considerably
dampened. But the evidence of PW 12 Dr. More who examined
the respondent on the 22nd at 8.45 p.m. reveals that he had
noticed (i) absence of smegma around the glans penis and

(ii) the frenum tortuous and edematous. indicative of the
respondent having had sexual intercourse within the preced-
ing 24 hours. However, absence of marks of violence and
absence of matting of pubic hair led the witness to state
that no definite opinion could be given whether or not the
respondent had sexual intercourse in the last 24 hours. In
cross-examination an attempt was
132
made to show that smegma may be absent in a man with clean
habits; that the frenum may be edematous if there is fric-
tion with rough cloth and tortuousness of the frenum could
be due to anything that causes swelling of the skin. The
witness, however, said that he had not seen marks of itching
thereby negativing the suggestion. Be that as it may, the
evidence of this witness does show that there was evidence
suggesting the possibility of the respondent having had
sexual intercourse within the preceding 24 hours although
the witness could not hazard a definite opinion. Therefore,
the non-committal opinion of this witness cannot be said to
run counter to the evidence of the prosecutrix. It may be
that the evidence as to resistence may have been overstated,
a tendency which is generally noticed in such cases arising
out a fear of being misunderstood by the society. That is
not to say that she was in any way a consenting party. She
was the victim of brute force and the lust of the respond-
ent.

PW 1 Mohmad Shafi’s evidence is also brushed aside on
account of so-called contradictions set out in paragraphs 32
to 34 of the High Court Judgment. The first reason is the
non-disclosure of details in the first oral statement which
was reduced to writing at Ex. 50. That was skeleton informa-
tion. That is why the need to record a detailed version Ex.
7 was felt. Therefore, merely because the details are not
set out in Ex. 50 it cannot be said that the prosecutrix had
not narrated the details. We have treated Ex. 50 as FIR for
deciding this case. The previous involvement of PW 1 in a
couple of cases is not at all relevant because the decision
of the case mainly rests on his wife’s evidence. But even
Ex. 50 shows that his wife had told him that the respondent
had raped her. We, therefore, do not see how the evidence of
PW 1 can be said to be unacceptable.

The fact that the respondent had gone to Gurudeo Lodge
at an odd hour and had taken the prosecutrix and her husband
to the police station at dead of night is not disputed. The
fact that the respondent refused to sign the police visit
book of the Lodge, though requested by the Manager PW 5
Manohar Dhote, on the pretext that he was in a hurry and
would sign it later, which he never did, speaks for itself.
Then the respondent booked Md. Shafi under a false charge
and put him behind the bars thereby isolating the prosecu-
trix. We say that the charge was false not merely because it
is so found on evidence but also because of the report Ex.
46 dated 21st September, 1981 seeking withdrawal of prosecu-
tion for want of material to sustain the charge. Having
successfully isolated the prosecutrix he sent her to Anand
Mahal Hotel with PW 7 who lodged her in Room No. 36. The
respondent,
133
therefore, had planned the whole thing to satisfy his lust.
The subsequent attempt on the part of the respondent to
commit suicide on being prosecuted as evidenced by the FIR
Ex. 56 betrays a guilty conscience. We are, therefore, of
the opinion that if the prosecution evidence is appreciated
in the correct perspective, which we are afraid the High
Court failed to do, there can be no hesitation in concluding
that the prosecution has succeeded in proving the respond-
ent’s guilt. Unfortunately the High Court stigmatised the
prosecutrix on a thoroughly erroneous appreciation of her
evidence hereby adding to her woes. If the two views were
reasonably possible we would have refrained from interfering
with the High Court’s order of acquittal. In our opinion the
trial court had adopted a correct approach and had properly
evaluated the evidence and the High Court was not justified
in interfering with the trial court’s order of conviction.
On the question of sentence we can only say that when a
person in uniform commits such a serious crime of rape on a
young girl in her late teens, there is no room for sympathy
or pity. The punishment must in such cases be exemplary. We,
therefore, do not think we would be justified in reducing
the sentence awarded by the trial court which is not harsh.
In the result we allow this appeal, set aside the order
of the High Court acquitting the respondent and restore the
order of conviction and sentence passed on the respondent by
the trial court. The respondent will surrender forthwith and
serve out his sentences in accordance with law. His bail
bond will thereupon stand cancelled.

Criminal Appeal No. 220 of 1986.

In view of the order passed in the State’s appeal, we
need not pass separate orders in this appeal. The appeal
will, therefore, stand disposed of in view of the order
passed in the above appeal.

R.N.J.						Appeal	 al-
lowed.
134



Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *